Public procurement regulation in Portugal

October 2018

• Portuguese Electronic Official Journal (Diário da República Eletrónico): www.dre.pt.
• BASE – the Portuguese public procurement portal: www.base.gov.pt.
• Supplement to the Official Journal of the European Union – TED (Tenders Electronic Daily): www.ted.europa.eu. (for public contracts with a value equal to or above the applicable EU thresholds).

• The Public Contracts Code establishes that certain contracts are only subject to the provisions set therein, in the event that the value of such contract is equal to or exceeds the thresholds indicated below:

• (*) According to article 12 of the PCC, entities mentioned in article 2(2) (“bodies governed by public law”) are also submitted to the rules applicable to entities listed in article 7 when operating in the utilities sector. In the opposite sense, the contracting authorities mentioned in article 2(1) (“contracting authorities”) of the PCC are submitted to the general rules when operating in the utilities sector.
• The Public Contracts Code also establishes that contracting authorities may choose the direct award procedure (one entity) and the prior consultation procedure (at least 3 tenderers) in the event that the contract value is below the following amounts:

• (i) (ii) The contracting authority is free to choose among the open and the restricted procedure. Open or restricted procedures may be used irrespective of contract values. The PCC establishes that the contracting authorities may choose an open or restricted procedure without prior notice on the Official Journal of the European Union in the event that the contract value is below the following amounts:

• (iii) (iv) The negotiated procedure and competitive dialogue can be used by contracting authorities in the cases mentioned in article 29 of the PPC, as follows:
  • Their needs cannot be met without the adaptation of easily available solutions;
  • The goods or services include the design of innovative solutions;
  • The contract may not be awarded without negotiations due to specific circumstances relating to its nature, complexity, legal and financial arrangements or due to the risks associated with it;
  • the technical specifications the technical specifications cannot be established with sufficient precision by the contracting authority by reference to a standard, European technical approval, common technical specifications or technical reference;
• The contracting authority is also free to choose among the open procedure, the restricted procedure and the negotiated procedure for public works concessions, public services concessions and company contracts (article 31 of the PCC).

• The PCC provides for interested parties to present an administrative appeal for any of the decisions made during a public tender procedure. It is also possible to directly appeal from the specification documents.

• The administrative appeal must be filed within five business days from the notification of the relevant act.
• The failure to observe the time limits leads to preclusion.
• Interested parties can also appeal to the Administrative Court any acts related to public works, public works concessions, public services concessions, public supply contracts and service contracts, as well as those related to the proceedings specifications. These are urgent proceedings and should be filed within 1 month of the notification of the relevant act.

• The standstill period starts with the announcement of the contract award decision and expires after ten days.

• A review can be conducted by the contracting authorities and/or the Administrative Courts.

• There are no fees for an administrative appeal made under the Public Contracts Code (principle of gratuitousness)
• EUR 204 for a judicial appeal made under the Administrative Courts Law.

• An administrative appeal made under the Public Contracts Code does not suspend the procedure but until the term for deciding on the appeal is complete, the following acts may not be undertaken: (i) qualification; (ii) beginning of the negotiation; and (iii) award of the contract.
• Since the approval of Decree-Law no. 214-G/2015, 2 October, a judicial appeal of the award decision made under the Administrative Court Law has a suspensive effect with no need to apply for interim measures.

• As a rule, the Public Contracts Code according to Directive 66/2007/EC establishes that public contracts are ineffective:
  • if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible;
  • if the contracting authority has awarded a contract before the the standstill period has expired.
• When a judicial or arbitral decision refrains from declaring the contract ineffective, the Public Contracts Code enforces the application of one of the following alternative penalties: (i) shortening of the duration of the contract or (ii) imposing fines on the contracting entity;
• The judicial or arbitral decision referred to in the preceding paragraph cannot ward off the annulment effect based on balancing an economic interest directly related to the contract in question, when such interest is based on, inter alia, (i) the costs resulting from delay in performance of the contract, (ii) the opening of a new procedure, (iii) a change of the contractual party, or (iv) a change of legal obligations resulting from the annulment effect.

• As a general rule, modifications to existing contracts are only allowed if (i) it is expressly provided in the tender documentation (review or option clauses and change of the private contractor); (ii) there is an abnormal change of circumstances (as long as the outcome of this increase is not higher than 25% of the initial value of the contract); and (iii) there is relevant public interest (as long as the outcome of this increase is not higher than 10% of the initial value of the contract).
• The PCC also foresees the possibility of modifying an existing contract to include additional works, supplies or services that cannot be performed separately for economic or technical reasons (i) due to unforeseen circumstances and with a value lower than 10% of the value of the original contract; or (ii) due to unforeseeable circumstances and with a value lower than 40% of the value of the original contract (for concession contracts this threshold is 50%).
• Modifications to existing contracts are not admitted if (i) it is considered to be a substantial modification; (ii) it has the purpose or effect to prevent, restrict or distort competition; (iii) had it been part of the initial procedure, it would have allowed for the admission of other tenders or a change in the classification of the admitted tenders.

• According to the Law no. 96/2015 of 17 August, the use of e-procurement and e-signatures is mandatory (except for direct award and prior consultation procedures).